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Detainee Lawyers to Use Ruling for New Attacks

Cmdr. Suzanne Lachelier, lawyer for one of five detainees charged in the 2001 terror attacks, said, Theres just no way the government can proceed on the course they thought. Lt. Cmdr. William C. Kuebler, right, lawyer for a detainee facing trial, may file a federal court challenge.Credit
Pool photo by Brennan Linsley

A day after the Supreme Court’s ruling granting detainees at Guantánamo Bay, Cuba, the right to challenge their detention in federal court, military defense lawyers said they planned to use the decision to mount new attacks on the government’s war crimes prosecutions that could stall or stop trials.

The new attack on the military commission system at Guantánamo will directly challenge a public declaration by the Justice Department after the ruling Thursday. The department said that detainees have numerous legal protections and that “military commission trials will therefore continue to go forward.”

The Supreme Court did not directly address the viability of the military commissions in its ruling, which said detainees have a constitutional right to challenge their detentions through habeas corpus cases.

But several constitutional law specialists said Friday that such broad challenges from detainees facing war crimes charges could, at a minimum, tie up the military commissions in years of court battles that might eventually lead back to the Supreme Court.

“It is an open question whether the military commissions, as they currently exist, satisfy the requirements of the Constitution,” said Michael C. Dorf, a law professor at Columbia University.

The military lawyers said they would use the Supreme Court’s 5-to-4 ruling to argue that if detainees have habeas rights they are also entitled to other constitutional protections. They say the Constitution would bar the planned trials, asserting that legal procedures at Guantánamo violate basic legal protections. The lawyers cited commission rules that permit hearsay and evidence derived by coercion as examples of commission procedures that they argued would not be permitted by the Constitution.

“It no longer makes sense for the government to pursue these cases through military commissions,” said Lt. Cmdr. Brian L. Mizer, who said he would quickly press a federal court challenge on behalf of his client, Salim Hamdan, a former driver for Osama bin Laden. Mr. Hamdan is scheduled to be the first detainee to face a trial, now set for July 21.

An earlier challenge on behalf of Mr. Hamdan stopped the Bush administration’s first military commission system and led to a 2006 Supreme Court decision that invalidated it. The Military Commissions Act that was at the center of the Thursday ruling was enacted after that 2006 decision.

Asked for a reaction to the defense’s assertions Friday, Erik Ablin, a Justice Department spokesman, again provided the statement issued on Thursday that asserted that the military commissions would proceed. He added that the government would respond “through its filed pleadings” to any specific claims.

Lt. Cmdr. William C. Kuebler, the military defense lawyer for a second detainee facing trial, Omar Khadr, said he was also considering a federal court challenge.

He said that in addition he would seek reconsideration of many pretrial rulings in Mr. Khadr’s case. Before Thursday’s ruling, military judges have assumed that the Constitution had no application at Guantánamo.

Earlier this month, the judge handling Mr. Hamdan’s case postponed the trial to await the Supreme Court’s decision. He suggested that a ruling granting constitutional rights could affect his rulings. The judge, Capt. Keith J. Allred of the Navy, said at the time that the justices’ decision “may well change the tenor or conduct of the trial.”

Among many other issues, defense lawyers say military commission prosecutions constitute a denial of equal protection of the laws because only foreigners can be prosecuted in military commissions. They also say Guantánamo prosecutions violate protections against retroactive laws — “ex post facto” legislation — arguing that some legal violations described in the Military Commissions Act were written after detainees were already at Guantánamo awaiting trial.

The Thursday ruling, Commander Kuebler said, “appears to demolish this argument that the Constitution does not apply in Guantánamo Bay.”

Lawyers said that even if the federal courts did not halt the commission trials, the ruling Thursday appears likely to slow the Guantánamo war crimes cases, as military judges evaluate claims that proceedings there do not pass constitutional muster.

Cmdr. Suzanne Lachelier, the lawyer for one of five detainees charged for the 2001 terror attacks, which prosecutors said they hoped to bring to trial in September, said that because of the Supreme Court ruling, “there’s just no way the government can proceed on the course they thought.”

Michael J. Berrigan, the deputy chief defense counsel for the Guantánamo cases, said many of the lawyers were reviewing the language the Supreme Court used in rejecting the government’s argument that Guantánamo detainees had no constitutional rights. “Now,” Mr. Berrigan said, “the battle lines are: Exactly what are the protections?”

Through a spokesman, the chief Guantánamo prosecutor, Col. Lawrence J. Morris of the Army, said he did not believe that the Thursday ruling “should slow the progress of the commissions process.” He added that he “looks forward to charging additional individuals while moving forward on those already charged.”

Prosecutors are expected to argue that the Supreme Court’s ruling Thursday, in the case of Boumediene v. Bush, did not suggest that detainees have broad constitutional rights. They are also expected to say the federal courts should not hear challenges until appeals from convictions.

Nineteen detainees are now facing war crimes charges. Prosecutors have said they may charge some 60 others. No trials have yet been held at Guantánamo.

Douglas W. Kmiec, a constitutional law professor at Pepperdine University, said federal courts might stop the commission prosecutions from proceeding while they consider what he said were serious questions the defense lawyers were raising.

“The argument has potential,” said Professor Kmiec, who was a Justice Department official in the Reagan administration.

He said the Supreme Court’s ruling did not categorically declare that the military commissions should stop. But, he said, the decision “certainly invites legal challenges.”

A version of this article appears in print on , on page A14 of the New York edition with the headline: Lawyers for Detainees Plan to Use Justices’ Ruling to Mount New Attacks. Order Reprints|Today's Paper|Subscribe